Citation Nr: 1045047
Decision Date: 12/02/10 Archive Date: 12/10/10
DOCKET NO. 08-37 120A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Roanoke,
Virginia
THE ISSUES
1. What evaluation is warranted for degenerative joint disease
of the lumbar spine from March 1, 2008?
2. What evaluation is warranted for degenerative joint disease
of the right knee from March 1, 2008?
3. What evaluation is warranted for tendonitis of the right
shoulder from March 1, 2008?
4. What evaluation is warranted for tendonitis of the right
wrist from March 1, 2008?
5. What evaluation is warranted for hemorrhoids from March 1,
2008?
6. What evaluation is warranted for gastroesophageal reflux
disease (GERD) from March 1, 2008?
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the
United States
ATTORNEY FOR THE BOARD
G. Slovick, Associate Counsel
INTRODUCTION
The appellant is a Veteran who served on active duty from April
1986 to February 2008.
This matter comes before the Board of Veterans' Appeals (Board)
on appeal from a June 2008 rating decision by the Huntington,
West Virginia, Regional Office (RO) of the Department of Veterans
Affairs (VA). The issues on appeal have since been transferred
to the RO in Roanoke, Virginia.
Initially, the Board notes that in November 2008, the Veteran was
granted service connection for bilateral shin splints. Since the
rating decision, the Veteran has not submitted a notice of
disagreement as to the disability evaluation assigned and the
issue is accordingly not before the Board at this time.
FINDINGS OF FACT
1. Since March 1, 2008, the Veteran's degenerative joint disease
of the lumbar spine has not been manifested by forward flexion
less than 60 degrees or a combined range of motion less than 120
degrees, muscle spasm or guarding severe enough to result in an
abnormal gait or abnormal spinal contour such as scoliosis,
reversed lordosis or abnormal kyphosis, nor has the evidence
shown objective evidence of an incapacitating episode lasting
between two and four weeks within the past 12 months.
2. Since March 1, 2008, the Veteran's degenerative joint disease
of the right knee has not been manifested by flexion limited to
45 degrees or extension limited to 10 degrees.
3. Since March 1, 2008, the Veteran's tendonitis of the right
shoulder has not been manifested by limitation of motion to the
shoulder level.
4. Since March 1, 2008, the Veteran's tendonitis of the right
wrist has not been manifested by ankylosis, dorsiflexion less
than 15 degrees or palmar flexion limited in line with the
forearm.
5. Since March 1, 2008, the Veteran's hemorrhoids have not been
manifested by persistent bleeding and with secondary anemia, or
with fissures.
6. Since March 1, 2008, the Veteran's gastroesophageal reflux
disease has not been manifested by persistently recurrent
epigastric distress with dysphagia and regurgitation, accompanied
by substernal or arm or shoulder pain productive of considerable
impairment to health.
CONCLUSIONS OF LAW
1. Since March 1, 2008, the requirements for an initial
evaluation in excess of 10 percent for degenerative joint disease
of the lumbar spine since March 1, 2008, have not been met. 38
U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38
C.F.R. §§ 3.159, 3.321(b), 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45,
4.59, 4.71a, Diagnostic Codes 5003, 5242 (2010).
2. Since March 1, 2008, the requirements for an initial
evaluation higher than 10 percent for degenerative joint disease
of the right knee have not been met. 38 U.S.C.A. §§ 1155, 5103,
5103A, 5107; 38 C.F.R. §§ 3.159, 3.321(b)(1), 4.1, 4.7, 4.40,
4.45, 4.59, 4.71a, Diagnostic Codes 5260, 5261.
3. Since March 1, 2008, the requirements for an initial
evaluation higher than 10 percent for tendonitis of the right
shoulder, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A,
5107; 38 C.F.R. §§ 3.159, 3.321(b)(1), 4.1, 4.7, 4.40, 4.45,
4.59, 4.71a, Diagnostic Codes 5024, 5201.
4. Since March 1, 2008, the requirements for an initial
evaluation higher than 10 percent for tendonitis of the right
wrist, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A,
5107; 38 C.F.R. §§ 3.159, 3.321(b)(1), 4.1, 4.7, 4.40, 4.45,
4.59, 4.71a, Diagnostic Codes 5024, 5214, 5215, 5216.
5. Since March 1, 2008, the requirements for an initial
evaluation higher than 10 percent for hemorrhoids have not been
met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.114, Diagnostic
Code 7336.
6. Since March 1, 2008, the requirements for an initial
evaluation higher than 10 percent for GERD have not been met. 38
U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.114, Diagnostic Code 7346
REASONS AND BASES FOR FINDINGS AND CONCLUSION
As service connection, an initial rating, and an effective date
have been assigned, the notice requirements of 38 U.S.C.A. §
5103(a) have been met. VA has fulfilled its duty to assist the
Veteran in obtaining identified and available evidence needed to
substantiate a claim, and as warranted by law, affording VA
examinations. He was provided the opportunity to present
pertinent evidence and testimony. In sum, there is no evidence
of any VA error in notifying or assisting him that reasonably
affects the fairness of this adjudication. 38 C.F.R. § 3.159(c).
Increased Rating Claims-Laws and Regulations Generally
Disability ratings are determined by applying the criteria set
forth in the VA's Schedule for Rating Disabilities (Rating
Schedule). Ratings are based on the average impairment of
earning capacity. Individual disabilities are assigned separate
diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2009).
Where entitlement to compensation has already been established
and an increase in the disability rating is at issue, it is the
present level of disability that is of primary concern.
Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In cases in which
a claim for a higher initial evaluation stems from an initial
grant of service connection for the disability at issue, multiple
(staged) ratings may be assigned for different periods of time
during the pendency of the appeal. Fenderson v. West, 12 Vet.
App. 119 (1999). The analysis in this decision is therefore
undertaken with consideration of the possibility that different
ratings may be warranted for different time periods.
Where there is a question as to which of the two evaluations
shall be applied, the higher evaluation will be assigned if the
disability picture more nearly approximates the criteria required
for that rating. Otherwise, the lower rating will be assigned.
38 C.F.R. § 4.7.
In determining the adequacy of assigned disability ratings,
consideration is given to factors affecting functional loss.
DeLuca v. Brown, 8 Vet. App. 202 (1995). Such factors include a
lack of normal endurance and functional loss due to pain and pain
on use, specifically limitation of motion due to pain on use
including that experienced during flare ups. 38 C.F.R. § 4.40.
Consideration is also given to weakened movement, excess
fatigability, and incoordination, as well as the effects of the
disability on the Veteran's ordinary activity. 38 C.F.R. §§
4.10, 4.45.
Of note, in this case, the Veteran's March 2008 VA examiner noted
that she was unable to discuss DeLuca criteria without resorting
to speculation. Upon review of the examination report, however,
the Board finds that while the examiner stated that she could not
comment as to the DeLuca criteria, the examiner did in fact
specifically note the limitations on the Veteran's ability to
function to include during flare-ups. In this regard, the Board
notes that of particular importance is that the examination did
in fact comport with DeLuca requirements. That she failed to
recognize these findings as the DeLuca requirements is of no
substantive significance whatsoever.
Ratings shall be based as far as practicable, upon the average
impairments of earning capacity with the additional proviso that
the Secretary shall from time to time readjust this schedule of
ratings in accordance with experience. To accord justice,
therefore, to the exceptional case where the schedular
evaluations are found to be inadequate, the Under Secretary for
Benefits or the Director, Compensation and Pension Service, upon
field station submission, is authorized to approve on the basis
of the criteria set forth in 38 C.F.R. § 3.321 an extra-schedular
evaluation commensurate with the average earning capacity
impairment due exclusively to the service-connected disability or
disabilities. The governing norm in these exceptional cases is a
finding that the case presents such an exceptional or unusual
disability picture with such related factors as a marked
interference with employment or frequent periods of
hospitalization as to render impractical the application of the
regular schedular standards. 38 C.F.R. § 3.321(b)(1).
The Board has reviewed all the evidence in the Veteran's claims
file. Although the Board has an obligation to provide adequate
reasons and bases supporting this decision, there is no
requirement that the evidence submitted by the Veteran or
obtained on his behalf be discussed in detail. Rather, the
Board's analysis below will focus specifically on what evidence
is needed to substantiate the claim and what the evidence in the
claims file shows, or fails to show, with respect to the claim.
See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and
Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).
When all the evidence is assembled VA is then responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the claimant prevailing in either event,
or whether a preponderance of the evidence is against the claim
in which case the claim is denied. Gilbert v. Derwinski, 1 Vet.
App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir.
2001).
Degenerative Joint Disease of the Lumbar Spine-Laws and
Regulations
The General Rating Formula for Diseases and Injuries of the Spine
provides a 10 percent disability rating for forward flexion of
the thoracolumbar spine greater than 60 degrees but not greater
than 85 degrees; or, combined range of motion of the
thoracolumbar spine greater than 120 degrees but not greater than
235 degrees; or, muscle spasm, guarding, or localized tenderness
not resulting in abnormal gait; or abnormal spinal contour; or,
vertebral body fracture with loss of 50 percent or more of the
height.
A 20 percent disability rating is warranted upon evidence of
forward flexion of the thoracolumbar spine greater than 30
degrees but not greater than 60 degrees; or, the combined range
of motion of the thoracolumbar spine not greater than 120
degrees; or, muscle spasm or guarding severe enough to result in
an abnormal gait or abnormal spinal contour such as scoliosis,
reversed lordosis, or abnormal kyphosis.
Note (2) provides that, for VA compensation purposes, normal
forward flexion of the thoracolumbar spine is zero to 90 degrees,
extension is zero to 30 degrees, left and right lateral flexion
are zero to 30 degrees, and left and right lateral rotation are
zero to 30 degrees. The normal combined range of motion of the
thoracolumbar spine is 240 degrees. See also Plate V, 38 C.F.R.
§ 4.71a.
A 20 percent disability evaluation is also warranted where there
is intervertebral disc syndrome with incapacitating episodes
having a total duration of at least two but less than four weeks
during the past 12 months.
Note (1) provides that for purposes of evaluations under
diagnostic code 5243, an incapacitating episode is a period of
acute signs and symptoms due to intervertebral disc syndrome that
requires bed rest prescribed by a physician and treatment by a
physician.
The Veteran was granted service connection for degenerative joint
disease of the lumbar spine with a 10 percent disability rating
based on limitation of motion in June 2008. The 10 percent
disability rating was continued in a November 2008 rating
decision.
Degenerative Joint Disease of the Lumbar Spine-Factual
Background and Analysis
The Veteran was afforded a VA examination in March 2008 during
which it was noted that he had recurrent flare-ups of low back
pain. The Veteran denied any radiation of low back pain or a
history of urinary or bowel incontinence. It was noted that the
Veteran's low back pain was caused by prolonged standing, walking
and bending and also occurred when sitting for long periods of
time during the day. Physical examination of the Veteran's low
back revealed no postural abnormalities or fixed deformity such
as kyphosis or scoliosis. There was no muscle spasm or
tenderness. The lumbar spine showed forward flexion to 75
degrees and extension to 30 degrees. Left and right lateral
flexion was to 30 degrees and left and right rotation was to 40
degrees. It was noted that all movements were performed slowly
and in a stiff manner with pain on extension. There was no
evidence of weakened movement against resistance. X-rays of the
lumbar spine were found to be normal and a diagnosis of
degenerative joint disease of the lumbar spine was provided. The
Veteran denied history of incapacitating episodes causing him to
be bedridden within the last year.
In this case, the Board finds that a disability rating in excess
of 10 percent is not warranted. While the evidence has shown
flexion between 60 and 85 degrees (75 degrees of flexion being
shown on examination), the evidence has not shown ankylosis,
limitation of motion or incapacitating episodes which might
warrant a higher rating. The Board further notes that spine
symptoms are to be rated with or without symptoms such as pain,
stiffness or aching in the areas of the spine affected by
residuals of injury or disease. See 38 C.F.R. § 4.71a,
Diagnostic codes 5235-5243.
The threshold factor for extraschedular consideration is a
finding that the evidence before VA presents such an exceptional
disability picture that the available schedular evaluations for
that service-connected disability are inadequate. Therefore,
initially, there must be a comparison between the level of
severity and symptomatology of the claimant's service-connected
disability with the established criteria found in the rating
schedule for that disability. If the criteria reasonably
describe the claimant's disability level and symptomatology, then
the claimant's disability picture is contemplated by the rating
schedule, the assigned schedular evaluation is, therefore,
adequate, and no referral is required. Thun v. Shinseki, F.3d
1366 (Fed. Cir. 2009). Here, the Board finds that the disability
picture presented by the Veteran's lumbar spine disorder is
appropriately contemplated by the rating schedule. Therefore,
referral for consideration of an extraschedular evaluation is not
warranted. Id.
Degenerative Joint Disease of the Right Knee-Laws and
Regulations
Procedurally, the Veteran was initially granted service
connection with a 10 percent disability rating for his right knee
disorder based on the Veteran's limitation of motion. The
applicable regulations are described below.
A noncompensable disability evaluation is warranted where there
is leg flexion limited to 60 degrees, flexion limited to 45
degrees warrants a 10 percent evaluation. 38 C.F.R. § 4.71a,
Diagnostic Code 5260. Leg extension limited to 5 degrees
warrants a noncompensable evaluation and extension limited to 10
degrees warrants a 10 percent evaluation. 38 C.F.R. § 4.71a,
Diagnostic Code 5261. A 20 percent evaluation is warranted where
flexion limited to 30 degrees or extension limited to 20 degrees
is demonstrated. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261.
When evaluating a loss of range of motion, consideration is given
to the degree of functional loss caused by pain. DeLuca v.
Brown, 8 Vet. App. 202 (1995) (evaluation of musculoskeletal
disorders rated on the basis of limitation of motion requires
consideration of functional losses due to pain).
VA General Counsel has held that separate ratings may be assigned
in cases where a service-connected knee disability includes both
a compensable limitation of flexion under Diagnostic Code 5260
and a compensable limitation of extension under Diagnostic Code
5261, provided that the degree of disability is compensable under
each set of criteria. VAOPGCPREC 09-04; 69 Fed. Reg. 59,990
(2004). The basis for the opinion is that the knee has separate
planes of movement, each of which is potentially compensable.
Id.
Under the criteria for impairment of the knee other than
ankylosis, a 10 percent evaluation is assigned for slight
recurrent subluxation or instability and a 20 percent evaluation
is assigned for moderate recurrent subluxation or instability.
38 C.F.R. § 4.71a, Diagnostic Code 5257.
Limitation of motion and instability of the knee are two,
separate disabilities, and a Veteran may be rated separately for
these symptoms. See VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (1997)
(when a claimant has arthritis and is rated under instability of
the knee, those two disabilities may be rated separately under 38
C.F.R. § 4.71a, Diagnostic Codes 5003 or 5010 and Diagnostic Code
5257).
Degenerative Joint Disease of the Right Knee-Factual
Background and Analysis
During the Veteran's March 2008 VA examination, the Veteran
reported that he had had operations on his right knee in 1981,
1982 and 1998. He stated that flexion and extension did not
usually cause problems but that side-to-side movements resulted
in sharp pain. He reported that he had not had any swelling of
the knee recently but that infrequently his knee buckled when he
climbed stairs.
Physical examination revealed flexion deformity of 10 degrees of
the right knee and active and passive flexion from 10 degrees to
130 degrees. Movements of the right knee were performed at
normal speed without pain and there was no evidence of weakened
movement against resistance. Tests for instability were
negative. Reptitive motion of the right knee did not result in
pain. X-rays of the right knee were found to show degenerative
changes.
The Veteran asserts that he should be in receipt of a higher
rating. The Board finds, however, that a 10 percent disability
rating is appropriate given the evidence shown. A 10 percent
rating was granted based on extension limited to 10 degrees and
pain on motion and loss of function. In this case, the evidence
has not demonstrated flexion limited to 45 degrees or extension
limited to 15 degrees nor has ankylosis, impairment, cartilage
dislocation, impairment of the tibia and fibula or genu
recurvatum been reported. Accordingly, a 10 percent disability
rating, but no higher, is appropriate for the Veteran's right
knee disorder.
Further, even when only considering the findings which show the
most limitations of the Veteran's function, the Board finds that
the Veteran's limitations of motion due to pain or weakness do
not at any time warrant a higher rating. DeLuca v. Brown, 8 Vet.
App. 202 (1995)
The rating criteria for the Veteran's service-connected right
knee disability reasonably describe his disability level and
symptomatology. Because the disability picture is contemplated
by the rating schedule, the assigned schedular evaluations are
adequate, and referral for extraschedular evaluation is not
required. Thun v. Shinseki, F.3d 1366 (Fed. Cir. 2009).
Tendonitis of the Right Shoulder-Laws and Regulations
Disabilities of the shoulder and arm are rated under Diagnostic
Codes 5200 through 5203. A distinction is made between major
(dominant) and minor upper extremities for rating purposes. In
the instant case, examination reports reflect the Veteran is
right handed, which means his right shoulder is his major
shoulder.
Diagnostic codes 5200, 5202 and 5203 will not be discussed here
as the Veteran has not demonstrated such pathology as ankylosis
or impairment of the humerus, clavicle or scapula such that would
merit consideration under these additional codes. See 38 C.F.R.
§ 4.71a.
Diagnostic Code 5201 provides that motion limited at the
shoulder level warrants a 20 percent rating for either arm.
Limitation of motion to midway between the side and shoulder
level warrants a 30 percent rating for the major arm. Limitation
of motion to 25 degrees from the side warrants a 40 percent
rating for the major arm. 38 C.F.R. § 4.71a, Diagnostic Code
5201.
Normal range of motion on both forward flexion (elevation) and
abduction for the shoulder is 0 to 180 degrees, and 0 to 90
degrees on internal and external rotation. See 38 C.F.R. § 4.71a,
Plate I.
Procedurally, the Veteran was granted service connection for
right shoulder tendonitis with a noncompensable disability
evaluation in a June 2008 rating decision. The Veteran disagreed
with the noncompensable disability rating and in a November 2008
rating decision, the RO increased the Veteran's disability
evaluation to 10 percent based on painful or limited motion of
the joint.
Tendonitis of the Right Shoulder-Factual Background and
Analysis
During his March 2008 VA examination, the Veteran stated that he
had experienced shoulder pain since 1993 which was located deep
at the end of the shoulder joint. The Veteran reported flare-ups
which occurred on lifting the shoulder sideways and pain which
occurred when he sat with his arm by his side. The Veteran
additionally stated that he was unable to lie on his right
shoulder for extended periods of time.
On physical examination, the shoulders were noted as symmetrical
with no tenderness to palpitation of the right shoulder. The
shoulder showed active and passive flexion to 180 degrees,
external rotation to 90 degrees and internal rotation to 45
degrees. Movements of the right shoulder were noted as performed
slowly with some guarding at the end of abduction due to pain.
There was no evidence of weakened movement against resistance.
X-rays of the right shoulder were normal, a diagnosis of right
shoulder tendonitis was provided.
The Veteran contends that he is entitled to a rating in excess of
10 percent. Given the available evidence, the Board disagrees.
In order for the Veteran to receive a higher schedular rating
based on limitation of motion, it must be shown that at the
least, his arm is limited to movement to the shoulder level. In
this case, the Veteran's motion in the shoulder is within normal
limits. As noted, the Veteran's current disability rating is
provided due entirely to the limitation of function consistent
with the findings in DeLuca v. Brown, 8 Vet. App. 202 (1995); 38
C.F.R. §§ 4.40, 4.45. The Board finds that the evidence has not
shown findings sufficient to warrant a higher disability rating
based on pain alone. As the Veteran has not shown sufficient
limitation of motion for a compensable rating and as a 10 percent
rating is found to be appropriate for the limitation of the
Veteran's function under the DeLuca criteria, the Veteran's
request for a higher disability rating must be denied.
Tendonitis of the Right Wrist
During his March 2008 VA examination, the Veteran stated that for
the past nine years he had experienced pain on the medial aspect
of the right wrist extending for a few inches above and the
forearm down the hand on the medial aspect. Flare-ups of pain
were reported as occurring when riding a bicycle or playing
tennis. On physical examination, the right wrist showed active
and passive dorsiflexion to 65 degrees, active and passive palmar
flexion to 70 degrees, radial deviation to 25 degrees and ulnar
deviation to 35 degrees. Movements of the right wrist were noted
as performed slowly with some guarding at the end of palmar
flexion due to pain. There was no evidence of weakened movement
against resistance. X-rays of the right wrist were reported as
normal.
In a June 2008 rating decision, the RO granted service connection
for tendonitis of the right wrist with a noncompensable
disability evaluation. The Veteran disagreed with this finding
and, in a November 2008 rating decision, the RO increased the
Veteran's disability rating to 10 percent noting that this
evaluation was based on the Veteran's painful or limited motion.
Under diagnostic code 5215, a 10 percent rating is warranted
where palmar flexion of the minor wrist is limited in line with
the forearm or where dorsiflexion is less than 15 degrees. This
is the maximum scheduler rating for limitation of wrist motion
available under this diagnostic code. 38 C.F.R. § 4.71a, DC
5215. A higher rating under DC 5214 requires evidence of
ankylosis.
The Board finds that a 10 percent disability rating is
appropriate in this case. The evidence has not demonstrated
palmar flexion in line with the forearm or dorsifelxion less than
15 degrees. Further, regarding the DeLuca criteria, the Veteran
is already in receipt of a 10 percent disability rating based on
his pain and limited function due to his wrist disorder. The
Board finds that a 10 percent disability rating is an appropriate
evaluation of the limitations on the Veteran's ability to
function due to right wrist pain. Accordingly, the Veteran's
claim for a rating in excess of 10 percent for tendonitis of the
right wrist is denied.
Hemorrhoids-Laws and Regulations
External or internal hemorrhoids are rated 0 percent when they
are mild or moderate. A 10 percent rating requires large or
thrombotic, irreducible hemorrhoids with excessive redundant
tissue evidencing frequent recurrences. A 20
percent rating requires hemorrhoids with persistent bleeding and
secondary anemia or with fissures. 38 C.F.R. § 4.114, Diagnostic
Code 7336.
The Veteran's hemorrhoids are currently rated as 10 percent
disabling, pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7336.
Hemorrhoids- Factual Background and Analysis
In his March 2008 VA examination, the Veteran reported that he
was diagnosed with hemorrhoids at age 18 and that he experienced
intermittent bleeding with perianal itching. The Veteran stated
that he used over-the-counter ointments for itching which
provided some relief. Examination of the perianal region showed
an external hemorrhoid. No evidence of fecal leakage, discharge,
bleeding, tenderness or excoriation was noted. There was no
finding of anemia due to hemorrhoids or of fissures.
The Board finds that the evidence as a whole shows that the
Veteran's symptoms exhibit no more than large or thrombotic
irreducible hemorrhoids with redundant tissue, evidencing
frequent recurrences. Simply put, the evidence fails to show the
persistent bleeding, anemia or fissures or approximate
symptomology required for a higher rating. Accordingly, a rating
in excess of 10 percent under Diagnostic Code 7336 is
unwarranted.
In this case, the Board finds that the disability picture
presented by the Veteran's hemorrhoids is appropriately
contemplated by the rating schedule. Therefore, referral for
consideration of an extraschedular evaluation is not warranted.
Thun v. Shinseki, F.3d 1366 (Fed. Cir. 2009).
Gastroesophageal Reflux Disease (GERD)-Laws and
Regulations
GERD is not specifically listed in the rating schedule, however,
when an unlisted condition is encountered it will be permissible
to rate under a closely related disease or injury in which not
only the functions affected, but the anatomical localization and
symptomatology are closely analogous. 38 C.F.R. § 4.20. In this
case, the Veteran's symptoms for GERD are most closely analogous
to those described in the rating criteria for hiatel hernia,
under 38 C.F.R. § 4.114, Diagnostic Code 7346. The Veteran's
disability evaluation is therefore considered under those rating
criteria. Id.
Under 38 C.F.R. § 4.114, Diagnostic Code 7346, a 60 percent
disability rating is warranted where there are symptoms of pain,
vomiting, material weight loss and hematemesis or melena with
moderate anemia or other symptom combinations productive of
severe impairment of health.
A 30 percent disability rating is warranted when persistently
recurrent epigastric distress with dysphagia, pyrosis and
regurgitation, accompanied by substernal or arm or shoulder pain
productive of considerable impairment to health is demonstrated.
A 10 percent disability rating is warranted where two or more of
the symptoms for the 30 percent evaluation of less severity are
demonstrated.
Presently, the Veteran is rated as 10 percent disabling for GERD
based on a November 2008 rating decision.
Gastroesophageal Reflux Disease (GERD)-Laws and
Regulations
During his March 2008 VA examination, the Veteran stated that he
had experienced GERD for four years. He reported that he had
heartburn which was unrelated to meals. The Veteran denied being
waken up at night due to heartburn. He stated that his appetite
was good, his weight was stable and that his bowel movements were
normal most of the time with occasional constipation. A
diagnosis of gastroesophageal disease was provided by the
examiner.
The Veteran contends that he is entitled to a disability rating
in excess of 10 percent for his gastroesophageal reflux disease.
Based on the evidence of record, however, the Veteran's claim for
a higher rating must be denied. Here, while he has stated that
he experienced pyrosis (heartburn), the evidence does not
demonstrate symptoms such as dysphagia and regurgitation
accompanied by substernal, arm or shoulder pain which produced
considerable impairment of health. The Board notes that the
Veteran experiences shoulder pain, this pain however is wholly
unrelated to epigastric symptoms and therefore will not be
considered in this disability evaluation. Finally, there is no
showing of vomiting, material weight loss and hematemesis or
melena with moderate anemia and no showing of symptom
combinations productive of a severe impairment of health.
Accordingly, the Veteran's GERD is appropriately rated as 10
percent disabling and the Veteran's claim for a higher rating
must fail.
Finally, the Veteran's GERD is not shown to warrant an
extraschedular evaluation as his symptoms are appropriately
described by the schedular criteria. Thun v. Shinseki, F.3d 1366
(Fed. Cir. 2009).
ORDER
Entitlement to an initial rating in excess of 10 percent for
degenerative joint disease of the lumbar spine from March 1,
2008, is denied.
Entitlement to an initial rating in excess of 10 percent for
degenerative joint disease of the right knee from March 1, 2008,
is denied.
Entitlement to an initial rating in excess of 10 percent for
tendonitis of the right shoulder from March 1, 2008, is denied.
Entitlement to an initial rating in excess of 10 percent for
tendonitis of the right wrist from March 1, 2008, is denied.
Entitlement to an initial rating in excess of 10 percent for
hemorrhoids from March 1, 2008, is denied.
Entitlement to an initial rating in excess of 10 percent for
gastroesophageal reflux disease (GERD) from March 1, 2008, is
denied.
______________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs